Episode 33 - Edward Fitzgerald

In this episode, we are thrilled to be joined by a true giant of the Bar, King’s Counsel Edward Fitzgerald CBE. A champion of prisoners’ rights, steadfast opponent of the death penalty and firm believer in the power of redemption, Ed looks back on some of his landmark criminal and human rights cases in a fascinating discussion with our Senior Partner Colin Cohen. Stay tuned.

Host: Colin Cohen
Director: Niall Donnelly
Producer and VO: Thomas Latter       

Established in 1985, Boase Cohen & Collins is an independent law firm equipped with Hong Kong knowledge and global reach. Please visit our website. 

Transcript

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[00:00:32] Colin: Welcome, everybody, to another episode of our podcast. And on this occasion, it's one of the rare ones in that I'm not in Hong Kong. I'm here in the dungeons of Doughty Street Chambers. And I'm delighted to be joined, with one of the true giants of the bar, Edward Fitzgerald, King's Council.

[00:00:53] Colin: Founding head of Doughty Street Chambers in London. He specializes in criminal law, public law, judicial review, and international human rights law. And has frequently come and appeared before the courts in Hong Kong. In 2008 he was awarded the CBE for service to human rights. He's notably, once famously described by his contemporary Lord David Panic, King's Counsel, as the Rolls Royce in the cab rank rule of the barrister.

[00:01:23] Colin: Ed, it's wonderful to see you again. I ask all my guests, what's been keeping you busy recently? 

[00:01:30] Edward: Well, Colin, I'm still doing lots of human rights cases and appeals. Criminal appeals, of course, the Assange case is still pending and I've been involved in cases in Northern Ireland, in the Caribbean, more recently in Estonia, and also one pending in Albania and Tirana.

[00:01:51] Edward: So very busy and enjoying practice from Doughty Street, my home for many years. 

[00:01:58] Colin: You seem to be all over the place. And indeed, quite interestingly, as my listeners know, I've been away a little bit from Hong Kong. We did a little trip together, didn't we? 

[00:02:07] Edward: Oh, yes, I should say, I've just had my 70th birthday and you very kindly took me for a trip to Lille for the England match against Samoa, which is very exciting if a close shave. 

[00:02:20] Colin: It was rather a very, very exciting weekend. Anyway, before we discuss more of your distinguished career, let's go back a bit in time. Tell me a little bit about your education, where you were raised, schooling, and what got you into the law. 

[00:02:34] Edward: Well my father was a businessman but A great scholar of French and German literature as well and fought with the Free French during the war so he was a flamboyant character, to say the least.

[00:02:49] Edward: My mother was a poet who tragically died when she was still very young. But I was brought up in family with lots of, lots of poetry around and lots of exposure to the more eccentric types. My stepmother was Polish, so I met all the polish exiles. And during the...

[00:03:06] Edward: Members of Radio Free Europe during that time. So I was very exposed to all sorts of different worlds. My mother being American 

[00:03:13] Colin: And you went to Oxford and you studied classics. What made you do that? 

[00:03:17] Edward: Well, I loved Latin and Greek and I enjoyed the classical literature and the philosophy too.

[00:03:23] Edward: I'm catching up on the history now reading more and more and still reading Latin quite a lot. And I loved it. I loved doing classics. I loved Latin poetry, Greek poetry, Greek drama the whole lot. And it still remains relevant. Greek tragedy is the best preparation for the criminal law you can have.

[00:03:40] Colin: And what got you into law? 

[00:03:41] Edward: Well, I think I was always interested in the legal process, Dostoevsky, and Crime and Punishment, Brothers Karamazov, all the great Russian literature was about the law, or criminal law. But I went to a lecture by Anthony Kenny about the question of intent in murder based on the Hyam case and I then did get really gripped by the idea of criminal law and the moral dilemma as it froze out.

[00:04:06] Edward: And I was always interested in prisoners and prisoners rights, really right from a very early age. And I was always opposed to the death penalty, really, from school days onwards. 

[00:04:15] Colin: And, Barrister as opposed to a solicitor? 

[00:04:17] Edward: Yes, I suppose that was just because I liked talking more and I like the academic side of Barristering.

[00:04:24] Edward: But I was lucky enough to get into Dr. Johnson's buildings which was, john Mortimer's chambers. Lots of fascinating people and that's where, of course, I met Geoffrey Robertson, who was later to found Doughty Street. A brilliant and most stimulating person and he really persuaded me to come to the Bar and, and do it properly.

[00:04:44] Colin: Yes, and we do go back a very, very long way, because you may recollect this, I was going all the time to one of Dr. Johnson's buildings because Martin Thomas, now Lord Thomas, was my lead counsel in the Lorraine Osman extradition That turned out to be one of the major decisions, we fought eight habeas corpuses.

[00:05:05] Colin: And I remember walking around the chambers and bumping into you. Helena Kennedy was also there as well. 

[00:05:09] Edward: Yes, , Helena was there. We had many future judges there. Stephen Irwin, Michael Grieve, wonderful people and great lifelong friends, Gavin Miller, Keir Starmer, of course, joined us while we were there and has remained a lifelong friend.

[00:05:25] Colin: Tell me a little bit about your early days in the law. I mean, were you running around to magistrates courts? 

[00:05:31] Edward: Right at the start I did anything that was thrown at me and that actually involved defending pornographers because that was one of the staples of one Dr. Johnson's through John Mortimer and Geoffrey Robertson.

[00:05:43] Edward: But then I started to do criminal defense, criminal appeals, especially on sentencing, and then I moved into the area of prisoners rights, which really was One of my major preoccupations throughout my life. And also Mental Health Review Tribunals. So it was a blend of knockabout stuff and really quite interesting work on prisoners and mental patients. And inquests too, a lot of inquests and deaths into custody. 

[00:06:11] Colin: And again, Was it expected to be a Barrister? Did you enjoy your early part of your career at the Bar, or did you find it difficult, were you happy at the early days? 

[00:06:19] Edward: Not always right at the start, in pupillage, but I think after I started to work on death penalty cases with Geoffrey Robertson and on the prisoners rights cases in the mental health review tribunals, then I really felt this is my space, this is what I want to do. And I started to really enjoy it and find it very fulfilling. 

[00:06:40] Colin: And tell us a little bit more about your Caribbean cases, because, you were the Doyenne of doing all the best you could to try to get the capital punishment was the name of the game at those early days.

[00:06:50] Colin: Can you elaborate a little bit about that? 

[00:06:52] Edward: Yeah, well it all started because... Geoffrey Robertson was very involved in doing those cases as were many of the others. Peter Thornton, who was a great figure ahead of the NCCL in those days. And Michael Grieve was very involved in that too.

[00:07:04] Edward: So we got very involved in the defending people in the Privy Council who were facing the death penalty. And then I went out to Jamaica. to help prepare an appeal and got involved in the idea of execution after long delay being unconstitutional. Case which then Geoffrey Robertson argued in Pratt Morgan.

[00:07:24] Edward: And after that was constantly called in to death penalty cases. And I became one of the advocates on the issue of whether the mandatory death penalty was unconstitutional, which we challenged firstly in Belize, then the Eastern Caribbean, then Barbados Trinidad, everywhere. And mostly successfully we got the mandatory death penalty struck down as unconstitutional.

[00:07:52] Edward: Working with the Deaf Penalty Project at Symons, Muirhead and Burton. And working with Keir Starmer and many other barristers to set aside the mandatory deaf penalty. And the most interesting thing of all that was that once we got rid of the mandatory deaf penalty as unconstitutional, each of these jurisdictions had to adopt a new discretionary system of capital sentencing and in fact develop very restrictive rules so that practically no one has been sentenced to death or had their sentences finally upheld since the case of Reyes, Hughes and Fox. 

[00:08:30] Colin: Yes, that was very interesting. Of course you were also heavily involved in the David Bentley case.

[00:08:36] Colin: David Bentley was someone who was hanged. There's a famous phrase, let him have it. Yes. As opposed to, he said, well, I said, give him the gun. As opposed to shooting him. 

[00:08:44] Edward: Well, there's some doubt as to whether he actually said the words at all. But if he did, as Lord Bingham pointed out in the appeal, it could just have meant hand over the gun.

[00:08:52] Edward: Yeah, I think Derek Bentley was obviously one of the cases which led to the abolition of the death penalty in England. Because there was this secondary party who had very limited intellectual capacity and had a very troubled childhood and was certainly not the shooter in the case and arguably not involved in incitement of any sort.

[00:09:16] Edward: So it was always felt to be a terrible injustice when he was hanged and he did not have a fair trial. But because the victim was a policeman, there was a feeling that he had to hang and mercy was refused. So yes, that was very much one of the great motors of the abolition of the death penalty in England and yeah, I was really I'm fortunate to be called on to represent him together with Henry Blacksland and Birnbergs, 

[00:09:41] Colin: Yes, I know them very well.

[00:09:42] Colin: Now, what I am a little bit interested in. You became, at that time, Queen's Council, now King's Council, taking Silk. And you took it quite early on. I mean, was that something you were asked to do or you wanted to do or some people prefer to remain with juniors. You took silk quite early in your career.

[00:09:59] Edward: Well, I think I was 41 when I got Silk. It was relatively early, it's a difficult decision whether to continue working as a junior where you're in charge of the case right through or to become a Silk. 

[00:10:11] Edward: But the very first big case I had as QC was the Venables and Thompson case, which went all the way up to the House of Lords. 

[00:10:19] Colin: And just for our listeners in Hong Kong, Venables and Thompson were the two youngsters who then commited the murder of another young boy.

[00:10:27] Edward: Yes. 

[00:10:27] Colin: That always had some stigma, but that case has always, always, always been very, very unpopular. 

[00:10:32] Edward: Yes, yes, they were very unpopular and indeed. And they and their families were the recipients of death threats and had to eventually have anonymity orders when they were released, yeah. 

[00:10:44] Colin: You've also acted for Myra Henley, the Moore's murder and all the rest as well. And a lot of people would ask, and they always ask me that question. Well, how can you act for the the most heinous crimes people can't sometimes understand, as solicitors and as barristers, we act for anybody.

[00:11:02] Colin: And you are one who will always, always, always, no matter who they are, you always will take up the cases. 

[00:11:07] Edward: Yeah. Well, obviously the system wouldn't work if people could refuse to represent unpopular defendants or the despised defendants whose crimes are particularly horrendous.

[00:11:19] Edward: So it's right that we have a system whereby you have to take a case as a barrister if it's within your area of expertise. And so I believe in the Cab Rank Principle. But also, I think it, it reflects a really basic human rights norm that everybody has a right to be represented, everybody has a right to be defended and everybody has a right as a human being to be treated with dignity no matter how horrendous their crime. 

[00:11:46] Colin: Yeah, and also it's quite interesting, the Myra Henley case did actually lead to quite a dramatic major legal change regarding the powers of the home secretary in dealing with that matter. So it was an important case whereby they had to look at things in a different way, with regard to the life sentence. 

[00:12:04] Edward: There were a whole series of cases of which the Hindley case was one, looking at the question of how you fix the minimum punitive term for convicted lifers, convicted murderers sentenced to life. And hers was one, and her complaint was that they had originally fixed 30 years, and then as the 30 years expired, they increased the minimum period she should serve to life.

[00:12:28] Edward: And that was done administratively and as a result of a series of cases, it's now all fixed judicially. But it's true that the periods that are now fixed have become longer and longer. And whereas people sentenced to life imprisonment for murder might well do in the region of 10 to 12 years, now people are doing 30 years or whole life quite often.

[00:12:55] Colin: And they're quite difficult to challenge that, because although the judge will give an indication that you will serve a minimum term of X number of years, once you get to going X number of years, they still then go to the second part, whereby like in, I can talk about Hong Kong, the long term supervision board, were saying, are you then able to be in a position to recommend your release?

[00:13:17] Colin: Are you still a dangerous person to the community? 

[00:13:19] Edward: Well, I mean, the way it works in England now is that firstly, a punitive term is fixed, which is the minimum period that must be served for punishment, which can vary between 15 years and whole life, depending on how grave the offense is, and in some cases can be less than 15.

[00:13:39] Edward: There, depending on the. degree of culpability, the age and the mitigation and then even when you serve that period you won't be released unless you're safe to go out and the parole board will decide that. But at least the system now has a certain amount of openness transparency and there are due process rights at both the Punitive stage and the parole stage.

[00:14:02] Colin: Yes, and you've always remained true to great concern for prisoners rights, young offenders, and the possibility of rehabilitation. How did this all come about? Was it your good Catholic upbringing? 

[00:14:14] Edward: Well, potential. Potential, yeah.

[00:14:16] Edward: I mean, for all of us. Yes. I'm certainly in favor of an indulgent view of human weakness. And I certainly believe in the infinite capacity of all human beings to change and then the rehabilitive ideal. Yeah, probably does come partly from Christianity, from Catholicism which my particular persuasion, but from the basic Christian belief.

[00:14:38] Edward: But also I, I think just a genuine belief in the perfectability of human beings and changeability and really from incredible experiences of people who've not been executed, who've then gone on to live incredibly good lives. Despite having been convicted of some serious murder and of rehabilitation. Particularly in the field of those convicted of terrorist offenses seeing people released and then living incredibly worthwhile and transformed lives. 

[00:15:08] Colin: Yes, however, there are some criminals who will always be too dangerous to be released. 

[00:15:13] Edward: Yeah, the problem is the identification of the ones who are not going to change. I agree that they exist, but it's not always easy to know who are the ones.

[00:15:23] Edward: I mean, I suppose one could come up with a fairly good bet in some cases that they're unlikely to change until very old age. But it is extraordinary how people who would have been written off at the time of sentence as totally committed to crime or totally violent and unredeemable.

[00:15:43] Edward: Have over the years changed and transformed themselves. 

[00:15:46] Colin: Now, let's go back a little bit in time to 1990 and I want you to tell us a little bit about your decision to set up the building I'm in, Doughty Chambers, and how did that all come about? And, you had some very, very eminent colleagues on the way, Geoffrey Robertson, who I know quite well, Baroness Helena Kennedy, current, as we said, Sir Keir Starmer.

[00:16:06] Colin: And, who will be the next Prime Minister, if the cards fall in the right way. 

[00:16:11] Edward: Well, I certainly hope it will. 

[00:16:12] Colin: But, this is the powerhouse of liberal legal establishment. 

[00:16:15] Edward: There was a, basic disenchantment with the set up in one Dr. Johnson's buildings. Where that was a great starting point. A very large group of us left Dr. Johnson's and took the long trek up out of the cloistered and sepulchral world of the the temple up to Doughty Street to found a new chambers. It was a group of us.

[00:16:39] Edward: We were lucky that Geoffrey Robertson agreed to be the the head and was an inspirational figure from the start. But there was a big group of us who came up here and We have flourished since then. And now today it's a very big chambers with massively diverse areas of law being practiced by lots of brilliant young lawyers. 

[00:17:02] Colin: But fighting, the great fights, 

[00:17:04] Edward: Still committed to, to civil liberties, social justice, yes and access to justice for all. 

[00:17:09] Colin: Let me throw this at you, throwing a curve, hospital rugby ball, as they would call it. One very eminent Lord Justice of Appeal said the following of you.

[00:17:19] Colin: Ed Fitzgerald could have made a fortune had he chosen to devote his talents to other fields of practice. Were you ever tempted to do so? 

[00:17:30] Edward: I think that's a very flattering remark. I think it's completely untrue. I wouldn't be hopeless in any other area of law than that which I'm doing now. And I can't imagine myself as a successful commercial lawyer.

[00:17:41] Edward: And, when things get super technical, I'm not always at my best. But I think we're very fortunate at the Bar and we were very fortunate in the legal aid days that one can earn a very good living Practicing in this area. Obviously it's not the same as in commercial.

[00:17:56] Colin: Well, I'm going to disagree with you just a little bit because this all leads me in very interestingly as to what got you to Hong Kong. And I knew you a little bit beforehand, but you advised in Hong Kong, but I recollect, like our listeners know, how you came to Hong Kong and you acted in the case for a very good client of mine in a quite a complex commercial allegations of corruption and competition that the a very good client of ours. How he selected you, which is quite interesting, he was a very good client and he came to the UK and he sat in courts and watched all the the leading King's councils and he saw Claire Montgomery, he saw all the others and he saw you and he selected you.

[00:18:37] Colin: Because he said you would never, never give up. I was told to instruct you and bring you out to Hong Kong. Do you remember that? 

[00:18:44] Edward: I do. Michael Wong, yes. Who was, who was, yes, a very good lawyer himself. 

[00:18:48] Colin: Well, he was a lawyer. He read a lot of law. 

[00:18:51] Edward: He loved studying the law and we eventually successful in proving that it was an abusive process, the proceedings against him.

[00:18:58] Edward: Yes, so that was what first brought me to Hong Kong and it was thanks to Michael Wong that I came out and that was a very interesting case about misuse of police powers leading to an abusive process. And, yes, well I'm very grateful that he did bring me out and I found it really stimulating and interesting working with him.

[00:19:15] Colin: Enjoy Hong Kong?

[00:19:16] Edward: I loved Hong Kong I'm very sad about Hong Kong. The situation that has now developed there, but I had a really many, many great friends there and very sad that I haven't, I haven't been for the last... 

[00:19:28] Colin: We're trying to do something about that, I hope.

[00:19:30] Colin: But anyway, one of the most notable cases you did in Hong Kong for me, which had all the headlines and everything else. What I recollect saying, would you come out, would you do this for me, was the Nancy Kissel case. Yes. The milkshake murder in that I would took over for the retrial. And then, if you remember, David Perry was instructed. And that was an interesting case we had together. Yes, 

[00:19:53] Edward: Yes, I remember it very well, David Perry saying, we are not going to fall out over this because there'd been tremendous blood on the carpet in the first trial between the opposing lawyers.

[00:20:05] Edward: And we didn't. And it was a trial before Andrew McRae where we were running diminished responsibility. I still think that it was a good case but it was rejected by the jury. We took it all the way up on appeal all the way up to the final court of appeal on the issue of the directions on diminished responsibility.

[00:20:24] Edward: And then we've continued the fight trying to get her out. Parole ever since. 

[00:20:28] Colin: Yes, so long term we tried to judicial review the long term prison review board. And she was sentenced there in Hong Kong, but judges do not give a reccommendation. It's left to the long term supervision board, which has judges on it and eminent psychologists, whereby they have to give a recommendation to the chief executive when she would be released.

[00:20:52] Colin: She's now done about 16, 17 years. And the issue there was quite a narrow one, was that we tried to say, look, you must have something in your own mind. You've got to say she spent enough time to enable you then to go to the next stage, is she safe to be released. But we failed on that and we didn't get very far on that one.

[00:21:09] Colin: So we're a little bit behind the times in Hong Kong compared to the jurisdiction here, in respect to that. And of course, there's one other case you did for me, which is still ongoing, which Tim Owen is now dealing with. And we don't want to say too much about that because the trial is ongoing, but you spent nearly 12 months with me, out in Hong Kong, traveling to New Zealand, doing a very complicated fraud with lots of commercial terms and, which you really quite enjoyed. 

[00:21:36] Edward: I did enjoy it, yes, I had to learn a lot about the stock market in Hong Kong. I had a brilliant junior, Benson Choi, who made sure I did understand it.

[00:21:45] Edward: And yourself, obviously, as my instructor said, that was a really interesting case, yes. And of course, that opened my eyes to other areas of Hong Kong life.

[00:21:54] Colin: I think that was good. I think what we enjoyed most. I mean, you have the reputation of being the most, cleverest, brilliant Lawyer.

[00:22:02] Colin: But for you to find your way from a Conrad Hotel, speaking out of school at the moment, to get no more than 15 minutes to the High Court, I had to have one of my junior young trainees every day there to take you to make sure you did not get lost. 

[00:22:16] Edward: I think there were a few early hiccups before I found my way.

[00:22:20] Edward: But I could now find it in the dark. But it was wonderful living just next to the court with the beautiful Hong Kong park next door and, and fighting that case. And, and indeed the Nancy Kissel case before that which obviously involved allegations of domestic abuse and issues of mental fragility.

[00:22:41] Edward: Which I hope eventually that they will see her tariff reduced and her released, but we've remained true to the fight for Nancy Kissell to try and get her out on parole ever since, and I hope the long term review board will eventually 

[00:22:56] Colin: Yeah, I hope so also. Back to the UK here, into London.

[00:23:02] Colin: You're busy doing lots of very interesting cases. You've got the Julian Assange case, you're doing some other very interesting work. You seem to be the man to go for at the moment. Content with life at the moment? 

[00:23:13] Edward: I'm very busy, I'm too busy to ask questions. But I'm very busy enjoying and enjoying and finally stimulating and very much enjoying working with my colleagues here in Doughty Street and the wider bar.

[00:23:25] Edward: Yes, I hope to keep going as long as possible. 

[00:23:28] Colin: Yeah, and you have recently celebrated your 70th birthday in great style. I was delighted to attend and be invited to meet the great and good of the whole of the Bar were there to talk about you. Any thoughts of slowing down now you're 70?

[00:23:46] Colin: Well, you're just becoming to mature like that great wine. 

[00:23:49] Edward: I hope I'll be able to keep going. I think interestingly both judges and counsel are going on far longer nowadays than perhaps they used to and, I'd certainly be reluctant to retire from the fray for many years to come, I hope.

[00:24:04] Edward: But very, very good news. 

[00:24:05] Colin: And just to update everybody. Leading counsel, Silks and King's counsel from England and Wales are being admitted all the time in Hong Kong if the case warrants of complexity. I mean the chief judge are still admitting people, and I do hope that you will be able to come out to come, if your diary is not too busy, to come to Hong Kong and help enhance the bar, because the objective of having King's Council into Hong Kong, it's an extra dimension to help the bar.

[00:24:34] Colin: All cases before our Court of Final Appeal, the judges are from some eminent law lords. Thank you. Ex Supreme Court judges are sitting as non permanent judges. So I do hope that you will be able to come to Hong Kong, and I can then brief you on a substantial matter so we can work together again.

[00:24:52] Edward: Yes, I hope to be able to come out and despite all the difficulties, I still passionately believe in the rule of law, and if one can play a part, either through lecturing or peering. Then that's something I would hope to do. 

[00:25:14] Colin: Ed, it's been fascinating to chat to you. So I've got to thank you so much for joining us on Law & More. 

[00:25:25] Edward: Thank you very much.